A trio of Republican senators will delay the nomination of John Brennan to be head of the CIA if they don’t receive an answer from the White House about who changed talking points in the days after the attacks on the consulate in Benghazi.

Sen. Lindsey Graham said he, along with Sens. John McCain and Kelly Ayotte, are determined to receive an answer.

“When Brennan comes before the Congress, we’re going to find out who changed those talking points or die trying,” Graham, the South Carolina Republican, said.

But all three refused to use the word “filibuster,” insisting that if they hold out, they’ll get answers.

“We’re going to get the information,” said McCain (R-Ariz.)

Benghazi is also one of the purported reasons that McCain and Graham said they were blocking Hagel’s nomination, of course, and the White House responded to that announcement by sending a letter to the Senate addressing the concerns that they had expressed. Apparently, that wasn’t enough because these three Senators — the new Three Amigos, perhaps? —- seem intent on pushing the Benghazi issue again, and I’m sure other Republicans will join them.

Washington (CNN) - Sen. Rand Paul, one of the most outspoken critics of President Barack Obama’s use of drones to target terrorists overseas, vowed Wednesday to hold up the nomination of one of the program’s chief architects.

John Brennan, Obama’s top counterterrorism adviser, is under consideration by the Senate to become the next director of the Central Intelligence Agency. The president nominated him to the post last month.

In a statement, Paul – a Republican from Kentucky – wrote that he still has questions for Brennan surrounding the drone program.

“I have asked Mr. Brennan if he believed that the President has the power to authorize lethal force, such as a drone strike, against a U.S. citizen on U.S. soil, and my question remains unanswered,” Paul wrote. “I will not allow a vote on this nomination until Mr. Brennan openly responds to the questions and concerns my colleagues and I share.”

Paul, along with some fellow Republicans and Democrats, have called into question the legality of targeting Americans abroad who are suspected of being terrorists. Such a situation arose in 2011, when an American drone was used to kill New Mexico-born Anwar al-Awlaki – who officials said played an operational role in al Qaeda in the Arabian Peninsula.

Paul’s hold at least has the merit of being based on a substantive, and important, issue directly related to the job that the President is seeking to put Brennan into. Indeed, Paul should be applauded for pushing for a more substantive discussion of the President’s drone policy, something many in Congress don’t seem willing to discuss. At the same time, though, it’s worth recognizing that the policy will still exist regardless of who heads to the CIA. Rather than just trying to top Brennan’s confirmation, I’d like to see Paul and others use this as an opportunity to push for more Congressional oversight of this controversial program.

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About Doug MataconisDoug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway.
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In Paul’s defense (wow – never thought I’d type _that_ phrase) there are some important, substantive questions that still need to be answered about drones, and FSM knows they’re not going to be asked in the SecDef hearings. And even if Brennan himself isn’t they guy to answer every one of them, this is a reasonable forum to let the President know that those questions aren’t going to go away.

But what I really want to see (and what, depressingly enough, I fully expect Paul or someone like him bring up on the floor of congress) is more Republicans fronting for Glenn Beck’s accusations of “Seekrit Mooooslims” in the administration. That’s the level of emotional and intellectual maturity I’ve come to expect from this party and this Congress.

If it’s not a real issue, then it should be pretty easy for Brennan to just say “No, my position is that neither the President, nor the CIA, have the authority to summarily execute a US citizen on US soil “, shouldn’t it? Hell, Obama could come out and say it, and that’d be the end of the issue for me. I want to hear one of them say that.

So I read those two cited articles and then it hit me: Has there ever been a more motley crew of people on the same side of an issue, albeit for different reasons, than McCain, Graham, Ayotte and Rand Paul? Nothing immediately comes to mind. An old war horse who left his prime behind two decades ago, a guy who because of some JAG service fancies himself as some sort of emeritus prosecutor and investigator extraordinaire, a freshman back bencher from a tiny, loopy state, and a guy who’s so completely divorced from reality he makes Kucinich look more than sentient. Yikes.

Brennan clearly is well qualified to lead CIA. His resume speaks for itself. Been a spook. Served in a high-level management role in CIA. Granted, he’s said some loopy things about waterboarding, but that’s de rigueur in various government circles. Brennan’s great work with the excellent drone program obviously should be viewed as a positive, not a negative. I’d vote to confirm him, without any major reservations.

@Ben: The AUMF doesn’t provide for the “summary execution of US citizens on US soil” and no drone has been used in that manner. Again, this is not a real issue.

Al-Awaki was a terrorist. The president has Congress’s permission to use “all necessary and appropriate force” to kill terrorists. Oh, he was born in NM? Then he should have known better than to make war against us.

This obsession McCain and Butters have with any mis-statements on Benghazi is pretty f’ing ridiculous given the long history of mis-statements from those two clowns.
I mean, seriously.
McCain thought Iraq was a great idea…when in fact it was one of the greatest blunders in US foreign policy. And yet he parades around like he knows something about anything? One of the biggest problems with US politics today is that someone can be as wrong as McCain has been…so often and about so many things…and still get listened to.
Change that…and we’ll improve this Republic twenty-fold.

Al-Awaki was a terrorist. The president has Congress’s permission to use “all necessary and appropriate force” to kill terrorists.

Was he? Perhaps you’re correct. Was his son? Who decides who is a terrorist and who isn’t? Whose definition of “terrorist” is the official one? Can someone challenge their classification as a terrorist? How can we be assured that these decisions are being made in accordance with whatever official definition we decide to use?

Would it be possible for a terrorist to be found here in the United States? If so, could the government decide to summarily execute him? How about if he was in England, or Germany?

I think these are valid questions. And no one is asking Obama (or anyone else in the executive branch) these questions.

The AUMF doesn’t provide for the “summary execution of US citizens on US soil”

The AUMF sets no limit on where the President may act, nor does it limit against whom he may act. “Nations, organizations, or persons.” That means pretty much everyone, everywhere.

Any limitations on the President’s authority under the AUMF have been imposed post hoc by the courts. And we’ve already seen one administration assert authority under the AUMF to violate the Constitution ( Bush and warrantless electronic surveillance).

Senator Paul has a very good question, and if the answer were an unqualified “no” we’d have had it already.

@Ben: WTF? Wasn’t the GOP up in arms demanding that something be done about Al-Awlaki after the Ford Hood shootings?

Where the hell was the whining ass GOP when an American citizen was being held without a trial and being denied access to a writ of habeas corpus at Gitmo? Where was the GOP when Bush’s military decided to obliterate a house containing Uday and Qusay Hussein, along with Qusay’s 14 year old son.

At the same time, though, it’s worth recognizing that the policy will still exist regardless of who heads to the CIA. Rather than just trying to top Brennan’s confirmation, I’d like to see Paul and others use this as an opportunity to push for more Congressional oversight of this controversial program.

Oh, you mean they should do their jobs and actually produce some legislation? Instead of trying to sabotage the country by preventing the government from functioning? Yeah, that would be nice.

That’s an excellent question, Ben, and it’s one all these good-intentioned civil libertarians should be asking. Was Al-Awaki a terrorist? I think so, but alas I have a full-time job doing something besides hunting down terrorists so I can’t say for sure. The pros certainly thought so, and legally, the president is authorized to use all appropriate force against people he determines to be terrorists, so it’s his call.

You must understand that “Is this guy a terrorist?” is a much different question than “Should we kill a terrorist with a drone?”

My answer to that second question is Yes, absolutely. Even if he’s waving his US passport. Why do you think the guy’s citizenship should be much of a factor?

I’m not sure what the point of your comment is. I think you’re trying to imply that either I or Rand Paul are hypocrites. I’m not an Republican, nor am I a conservative, nor have a voted for a Republican at anything above state rep level in the last 3 elections.

As for Senator Paul, although he is ostensibly a Republican, he breaks with his party pretty severely in the area of civil liberties. He may have some pretty loopy libertarian ideas, but he cares a whole hell of a lot more about civil liberties than any Democrat in the Senate or the House.

That’s an excellent question, Ben, and it’s one all these good-intentioned civil libertarians should be asking. Was Al-Awaki a terrorist? I think so, but alas I have a full-time job doing something besides hunting down terrorists so I can’t say for sure. The pros certainly thought so, and legally, the president is authorized to use all appropriate force against people he determines to be terrorists, so it’s his call.

Maybe it’s my just me, but I’d like some independent oversight when it comes to killing people. Pardon me if I don’t take the President’s (or the CIA’s) word for it.

And the AUMF is a bit more limited than you’re making it out to be. It doesn’t authorize “force against all people he determines to be terrorists”. It authorizes force against those responsible for the 9/11 attacks and the groups that aided or harbored them. I think that that language restricts the Obama administration to using force against only those individuals with confirmed ties to a group that was associated with the 9/11 attacks, and they should have some evidence proving such. Why couldn’t they present that evidence to a judge, or to some other person independent of the President’s chain of command to provide some sort of check or oversight?

You must understand that “Is this guy a terrorist?” is a much different question than “Should we kill a terrorist with a drone?”

Yes it is. And it’s the first question that concerns me more. And I don’t want to let Obama, and whoever comes after him, to be able to unilaterally make that decision.

Why do you think the guy’s citizenship should be much of a factor?

Because US citizens shall not be deprived of life, liberty or property without due process of law. And no, flying to Yemen and being in the company of people Obama says are Al Qaeda does not legally mean that you automatically surrender your citizenship.

The difference between this “engagement” or whatever you want to call it (I will NOT call it a war) and previous wars is that there is no battlefield. In previous wars, if a US citizen were to change sides and take the battlefield against the US, then it was within the rules of war to kill him. But now, it is much murkier what you have to do to be considered an “enemy combatant”. Is just being in the wrong place with the wrong people in some foreign country enough? Is it giving money to a front group? Is it selling weapons or technology to someone who happens to be planning something nefarious? Or do you have to go all the way to the point where you are strapping on explosives?

These are things that need to be decided, and they need to be public. I need to know that person A will not be killed unless they take actions A, B, C or D. Every citizen should have a right to know that. It is a basic bedrock principle of our legal system.

The cheerleading Democrats continue to engage in as their own politicians exceed the Bush Administration’s wrongdoing is truly a perverse joke. Now we have Democrats defending the nomination of one of the architects of the Bush torture regime, a man who has repeatedly lied about the extent of the drone program (remember the “no attacks going on in Yemen” claim), a man whose reputation in Washington is that of a complete sycophant to the powerful.

Anyone claiming with certainty al-Awlaki was a terrorist is really saying, “I trust the government to always be honest and forthright and to never abuse its powers, so long as Democrats run it. I don’t need any evidence of guilt, the President’s word is good enough for me”. Anyone excusing the assassination of al-Awlaki’s 16-year old son has no ethics and no conscience.

Has anyone been paying attention over the past twelve years? Were the same people currently insisting our government would never arbitratily execute an American in American territory also insisting we would never torture, agressively invade another country, illegaly render, arrest and jail individuals for years without charge or trial, tap the communications of every citizen, maintain permanent files on those citizens, permanently place beyond the law bankers who aid rouge nations, terrorists and drug cartels?

Were those Democrats certain that we would never immunize those responsible for war-crimes with a “look forward, not backward” policy, unless of course when it comes to prosecuting the whistleblowers who made those crimes known?

If it’s such a certainty the President would never authorize murder in the U.S. (and it is truly amazing that Democrats don’t seem even a little uncomfortable at even the suggestion a President could have this power) how can it be considered an onerous or outrageous requirement for Brennan to just say so? “No, neither the President nor any arm of government has authority to do this”. It’s a five-second statement, and given some here assure us it is implicitly true, why not make it explicit?

Congress does not decide what due process of law is, and they cannot change it with via statute. They would need to amend the constitution to do so.

And can you define for me who or what exactly Al Qaeda is, who is in it, and how to tell whether someone is a member or not? As far as I know, there is no official member roll. Basically, you’re asserting that the government will tell us who is in Al Qaeda, because they say so, and this should be sufficient for everyone.

Was Al Awlaki’s son in Al Qaeda? Are you sure?

We’re just suppoosed to take the executive branch’s word for it? Would you do that if it was Bush that was President? What if it was Romney? What if it was Sarah Palin?

What if it was Joe McCarthy, or someone like him? Because, rest assured, this “war” will not end, ever. And we will someday have a president who reminds us very much of McCarthy. And I hope we will have started to put some restraints on the presidency by then.

@James Pearce (Formerly Known as Herb): Not any real limit. All the President has to do is unilaterally declare that some “nation, organization, or person” is in cahoots with al Qaeda and let the missiles fly. There is no limitation whatsoever placed on the location, which is of course why the Bush administration asserted the AUMF allowed it to monitor, without a warrant, telecommunications that originate within the United States.

And can you define for me who or what exactly Al Qaeda is, who is in it, and how to tell whether someone is a member or not? As far as I know, there is no official member roll. Basically, you’re asserting that the government will tell us who is in Al Qaeda, because they say so, and this should be sufficient for everyone.

“All the President has to do is unilaterally declare that some “nation, organization, or person” is in cahoots with al Qaeda and let the missiles fly.”

Oh yeah, it’s easy.

Imagine if he said that about Russia? Or Venezuela? Or Cuba?

I mean, I get your point…..but we have plenty of institutions that will for the most part keep the president in check on this one. What you’re calling for is even more checks and balances….which is fine….but why think more checks and balances will work better, when –according to you– the ones we have now don’t work at all?

Anyone claiming with certainty al-Awlaki was a terrorist is really saying, “I trust the government to always be honest and forthright and to never abuse its powers, so long as Democrats run it. I don’t need any evidence of guilt, the President’s word is good enough for me”.

And the Canadian government. And the United Nations Security Council. And the Yemeni government that tried him in absentia. And his own admission. Nobody with a brain in their head doubts the man was a terrorist in Al Qaeda.

Anyone excusing the assassination of al-Awlaki’s 16-year old son has no ethics and no conscience.

This statement indicates you may not really know what the term “due process” means….

I think the Supreme Court might have something to say about your claim that the AUMF constitutes valid due process for a targeted American citizen.

I do not have to. The president is left with that authority. Which Congress authorized.

And I might be more inclined to trust his judgment if he did not claim the authority to say that I am I am in Al Qaeda, and execute me summarily without having justify it to anyone other than himself.

Again…not relevant to the question of whether it’s wrong to kill US citizens who are aligned with our enemies. I can’t say he was in Al Qaeda (not enough information) and you can’t say he wasn’t.

It is extremely relevant, because the answer to whether it’s right or wrong to kill US citizens is predicated on how the determination is made that they have, in fact, aligned with our enemies. And whether that determination is based on any evidence whatsoever.

I’m too old and world weary and selfish to think I should be consulted on these matters. Why have a president if I have to do all his work?

I’m not saying they need to consult you, stop being obtuse. How about a judge, or a committee, or hell, how about having to show the evidence to any damn person who doesn’t work for him?

but we have plenty of institutions that will for the most part keep the president in check on this one. What you’re calling for is even more checks and balances….which is fine….but why think more checks and balances will work better, when –according to you– the ones we have now don’t work at all?

Which institutions are you referring to here? I don’t believe that Obama has stated that he is accountable to any check here whatsoever. All we know is that top-level executive branch people are involved in the process. All of whom work for him. That’s not a check, by any definition of the word I’ve ever heard.

@James Pearce (Formerly Known as Herb): I don’t want “more” checks and balances, I want there to be checks and balances in the first place. I’m not saying what we have doesn’t work, I’m saying we have none.

My problem is the process for figuring out WHO is subject to a drone strike is entirely opaque and there is literally no oversight whatsoever. The entire thing takes place within the White House and the upper reaches of the executive, and nobody else gets a look. It’s pretty much the definition of arbitrary, and arbitrary government is what the Bill of Rights was created to prevent.

We can provide oversight without revealing classified information. We do it with the FISA court all the time. It just satisfies the most basic Constitutional requirements to have independent judgment that the executive’s order to strike an American citizen is warranted and justified.

My problem is the process for figuring out WHO is subject to a drone strike is entirely opaque and there is literally no oversight whatsoever.

I agree, but how is that different from picking targets on the battlefield? There is no oversight from Congress there either. You can argue that Yemen and Pakistan are not part of the battlefield, I suppose, since we have not declared war on those countries, but we haven’t declared war on anyone in decades, so….

“Oversight means independent review of the evidence used to place an American on a kill list.”

Do you realize how this stuff works?

The “independent review” you seek occurs before it comes to the president’s desk for sign-off.

You really thought Obama was sitting in the Oval Office putting together a kill list? Really? I assure you, it’s our military and intelligence agencies doing the hard work, then once they have their ducks in a row, they go to the president for a final sign off.

My point is, there is no independent oversight because everyone in the process works for the President.. Everyone involved is either a direct report to the President or someone whose chain of command/supervision ends at the President. There is nobody in the process who cannot be influenced by the President, either directly or through his/her chain of supervision. The legal eagles all work for Eric Holder, who reports to the President. The intel guys all work for the DCI or National Security Adviser or COMJSOC, all of whom report to the President. The President sets the tone with them, the President issues the strategy and objectives with them, and they follow. The opportunity for closed-loop groupthink is considerable.

That is why oversight is important–because it brings in someone who is independent of the President’s direct influence. It brings objectivity. Oversight isn’t necessary because we expect the President to declare himself King, or because we don’t trust our intel professionals. It’s necessary because it breaks the loop and prevents the kind of hyper-focus that loses the forest for the trees.

Oversight is necessary because the President and Attorney General and DCI and NSA and COMJSOC are human.

My point is, there is no independent oversight because everyone in the process works for the President.. Everyone involved is either a direct report to the President or someone whose chain of command/supervision ends at the President. There is nobody in the process who cannot be influenced by the President, either directly or through his/her chain of supervision.

“Oversight is necessary because the President and Attorney General and DCI and NSA and COMJSOC are human.”

So is everyone else on the planet.

Let me ask you something…..do you think it’s missing the forest for the trees by declaring all terrorists with US passports off-limits to drone strikes?

Like I said in another thread. Let’s get oversight. Fine. But when the overseer goes “We can’t kill him, he’s an American” are they wowing us with their objective third-party viewpoint…..or are they not really helping?

@mantis: It’s not, but it should be. Because we are dealing with American citizens who are not on a battlefield.

And that matters because, as Justice Hugo Black wrote, “The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of a written Constitution and undermine the basis of our government.”

It’s not, but it should be. Because we are dealing with American citizens who are not on a battlefield.

Some would argue that the battlefield has changed and cannot be constrained within national borders. And if you do accept that, it doesn’t really make a difference if the target is American or not (troops would not need special oversight/permission to kill an American citizen enemy who is shooting at them on a traditional battlefield).

All that said, I do agree that there needs to be special oversight over what I believe are necessary actions against a new kind of enemy and a new global military environment. I don’t think it should be in the hands of Congress though. I envision something more like the FISA court.

Some would argue that the battlefield has changed and cannot be constrained within national borders. And if you do accept that, it doesn’t really make a difference if the target is American or not (troops would not need special oversight/permission to kill an American citizen enemy who is shooting at them on a traditional battlefield).

I think the concept that “the battlefield is the whole world” is dangerous, because it essentially allows all actions under the rubric of “war.”

Even if one does accept it, there’s the question of whether an American who has allied himself with al Qaeda but is not actually in the process of planning or conducting terrorist acts should be seen as an imminent threat.

All that said, I do agree that there needs to be special oversight over what I believe are necessary actions against a new kind of enemy and a new global military environment. I don’t think it should be in the hands of Congress though. I envision something more like the FISA court.

I’m willing to put down money that scenario has actually occurred already.

With Al-Awaki specifically, there was plenty of evidence he was a terrorist. Very few people are prepared to argue he wasn’t. They’d rather think his citizenship (which was a dual citizenship, by the way) trumps all.

As I recall it dealt a lot more with Gitmo and surveillance than with anything drone-related, but the basic point still applies, that we need a legal framework suited to the “long war” and we don’t have it.

I’m willing to put down money that scenario has actually occurred already.

I don’t doubt there have been some intense and well-thought-out deliberations about who ends up on the kill lists. But that doesn’t eliminate the very real potential for the kind of closed-loop hyper-focus that has led to other governmental debacles in our history.

With Al-Awaki specifically, there was plenty of evidence he was a terrorist. Very few people are prepared to argue he wasn’t.

I’m not even prepared to argue he wasn’t.

But that doesn’t change my opinion that the process used to kill him wasn’t Constitutionally sound, and that we should have something better in place should we have to go down the same road again in the future.

They’d rather think his citizenship (which was a dual citizenship, by the way) trumps all.

It doesn’t trump all, it just creates some requirements that the government should have to meet when considering a deadly act against one of its own citizens, dual or not.

Gee, I thought all those liberals and Democrats were AGAINST drones. I guess having a Dem POTUS makes it OK. Bush was a war criminal for using drones, Obama is okey-dokey because he means well and his intentions are good. lol

The left/liberal/Dems were never really anti-war; they were just anti-Bush.

Glad this Brennan pick flushed out the hypocrites on the left—not that much will change with them.

Doug, do you really believe his Imperial Majesty King Obama will really allow “more congressional oversight” on that which he considers his special and absolute territory?

With that much faith in Obama and the government you are obviously a Democrat.

I don’t think bringing up “unlimited expansion of executive power” is helpful to the conversation. The reason FISA court type oversight doesn’t exist for situations like this is Congress, not the President. Congress doesn’t want to take responsibility and deal with this issue, so the executive does. Criticizing the executive seems misplaced until they veto a bill establishing oversight.

@David M: Perhaps it’s out of place, but there are multiple interlocking issues in this, and whether the executive is seeking to expand its power or Congress is failing its obligation to provide a check, the effect is the same.

In WW2, some Americans apparently joined the Waffen SS and fought against the USA.

Peter Delaney (aka Pierre de la Ney du Vair), a Louisiana born SS-Haupsturmführer in SS-Standarte Kurt Eggers who is believed to have served in Légion des Volontaires Français (LVF). He met Monti and probably arranged for him to enter the Waffen-SS. Delaney was killed in 1945.

At least eight American volunteers are known to have been killed during their service.

Numerous ethnic Germans who were born in the USA served in the Wehrmacht, for example Boy Rickmers who was born in New York and won the Knight’s Cross as part of 320. Infanterie-Division on 26 March 1943.

Anybody feels FDR violated their human rights by bombing, or shelling the units they fought in, without holding some some of court hearing? Me neither.

What’s the difference, really.? The fact that al-Queda isn’t a country and that al-Alaki wasn’t dressed in a spiffy military uniform? The fact is that he had declared war on the USA( he said so) and did plan to kill Americans. No one really doubts this.

Should we have waited till he actually had killed some Americans? Would that have salved some civil libertarian consciences? Would it then , “Now that he’s actually spilled some American blood, now we can go get him?”

If drones and due process were the congressional priority, they could take that straight up by drafting a bill.

If they won’t, they are just allowing Paul to snipe with an issue they don’t really, honestly, want brought forward.

That’s the problem here, congressional inaction. For whatever you want to criticize Obama for regarding this issue, at least he’s acknowledged the issue exists and has done something. Congress has done nothing, and it’s arguably more their responsibility.

@john personna: Yeah, I’m not really holding out any hope my opinion will prevail. Very few in Congress want to touch it, the President is more than happy to take the mile he’s been given, and most Americans either don’t care or favor the policy.

But some things cannot be met with silence, even if speaking out is pointless in the end.

And no, I’m not talking about search and seizure, trial rules, and so forth. I’m talking about very basic due process protections, which apply to all Americans no matter where in the world they are, that would ensure we have the right guy and that the executive has not exceeded its authority. Obviously it would not be practical to send the NYPD to Sana’a to pick the guy up. A review of the executive’s evidence by an independent judge would be sufficient.

al-Awlaki’s son wasn’t collateral damage, at least according to the White House. His 16 year old son was immolated by a drone strike two weeks after his father was executed. The White House effectively said it was because the kid should have chosen better parents.

In 1982 an American citizen and terrorist was summarily executed on US soil under the Reagan administration because he posed an immediate threat. He had what he claimed was a panel truck full of explosives parked next go the Washington Monument. I’m pretty sure this happens by police almost daily. If someone poses an immediate threat they can be killed, whether by a sniper or a drone doesn’t seem to make much difference.